9911796707
TMI Blog2013 (4) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... nsaction value of such goods the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of importation, or as the case may be, for export from India for the delivery at the time and place of exportation, where the buyer and seller of the goods are not related and price is the sole consideration for the sale subject to such other conditions as may be specified in the Rules. The ordained principle as envisaged by the Act for the provisional release of goods contemplates that any goods, documents or things seized under Section 110 may pending the order of the adjudicating officer to release to the owner on taking a bond from him in the proper form with such security and conditions as the Commissioner of Customs may require. Accordingly, the mandamus sought for by the petitioner, to direct the respondent to grant provisional release of goods on adjudication of the matter, is ordered and the respondent is directed to pass appropriate orders in accordance with law and on merits, on the basis of personal hearing, dated 01.12.2011 and the production of BRC, dated 05.12.2011, which was endorsed, and thereafter release the goods - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to stop the goods on the ground that the exporter had overvalued the goods with the intention to avail higher incentive, which is not available to the extent claimed by the petitioner. Accordingly, they recalled the goods back to Tuticorin for examination. Besides that the petitioner's other consignments, which was about to be exported from Tuticorin Port was stopped and brought back for examination on the same allegation of over valuation of goods. 2.2. The details of the said consignments are as follows: Container No. Shipping Bill No./Date Qty in yards FOB Value in Rs. DEPB amount in Rs. BSIU9153055 2401712/ 2.2.2011 76500.00 1,03,27,712.50 8,46,872.44 2401710/ 2.2.2011 75750.00 1,02,26,350.00 8,38,560.69 2401737/ 2.2.11 76500.00 1,03,27,712.50 8,46,872.44 Total 228750.00 3,08,81,775.00 25,32,305.57 In this shipment, the value of the fabric was declared as Rs.135.15 per yard for the export purpose and the present Indian market value was declared as Rs.148.66 per yard. 2.3. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the declared value of the petitioner is without basis and the value declared by the petitioner is correct, at which value the buyer has agreed to purchase the goods and there is no justification for decreasing the same and the petitioner has already received the money against the export from the buyer in advance and therefore, whole exercise to decrease the value and correspondingly the incentive is full of malafide and arbitrary attitude is totally unsustainable. 2.5. The goods in question had been exported on the order of the buyers and against which the remittance have been received and the inability on the part of the petitioner to send the goods to the buyer on account of investigation by the respondent is in violation of the terms and conditions of the contract entered into between the buyer and seller, which can lead to serious repercussion. On the above basis of allegations, already a show cause notice bearing No.VIII/48/08 10/2011 DRI TTN dated 24.08.2011 has been issued by the DRI, wherein the petitioner has already filed an interim reply and also took part in the personal hearing held on 01.12.2011. In the said hearing, the petitioner requested for cross examinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead with section 110A of the Act in accordance with customs (Provisional Duty Assessment) Regulations, 1963 (hereinafter referred to as 'the Regulations'). As there is no reply from the respondent, till date, about the provisional release of the goods for the purpose of export and the goods are incurring huge loss, the petitioner is before this Court for the above relief. 3. The respondent has filed their counter and inter alia stated that the petitioner had filed shipping bill Nos.2302618, 2302619 and 2302623 dated 21.01.2011 for the export of 228002.22 yards of polyester fabrics to Afghanistan, declared FOB value of Rs.3,05,21,457.00 and claimed the benefit of Rs.25,02,759.56 under DEPB scheme. He has also filed shipping bill Nos.2401710, 2401712 and 2401737 all dated 02.02.2011 for the export of 228750.00 yards of polyester fabrics to Afghanistan declaring the FOB value as Rs.3,08,81,775 claiming the benefit of Rs.25,32,305.57 under DEPB scheme. The goods were examined and let export order was given initially, on further examination by DRI (Directorate of Revenue Intelligence), Tuticorin, the export goods were found to be of inferior quality and the value of the export goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will produce the past one year records of exports and realization of BRC within a period of one week. But no such records have been produced till date and passing of the adjudication order is pending for want of the same. Instead of producing the records as assured by him at the time of personal hearing to facilitate the completion of adjudication process, misled this Court by suppressing the facts and made plea for the provisional release of the goods. The respondent also relied on a decision of the Supreme Court in the case of UOI vs. Lexus Exports Pvt Ltd., reported in 1994 (71) ELT 348 (SC), wherein it was held that "the proceedings of seizure and confiscation are proceedings in rem. Until the culmination of the adjudication, it is difficult to envisage any right on the part of respondent from whom they are seized to export them on the basis of future title they expect to acquire by payment of fine ... but sanctity of legal proceedings cannot be whittled down on grounds of such expediency". On the background pleadings and the decision cited by them, they prayed for the dismissal of the writ petition. 4. Mr. Pradeep Jain, learned Senior counsel for the petitioner, in his su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declared in the shipping bills based on which the petitioner would get the benefit under the DEPB scheme. Therefore, in the absence of proper documents, the value declared by the petitioner is liable for rejection under Rule 8 and the value determined by the officials under Rule 6 was taken as the true transaction value for the purpose of assessment based on the local market value. He contended that the petitioner requested for the release of the goods for the purpose of domestic use without any export incentives. On the other hand, the petitioner has pleaded before this Court to release the provisional goods for the purpose of export stating that it would bring valuable foreign exchange into the country. Lastly, the learned counsel pointed out that during the personal hearing, the petitioner inter-alia informed that he will produce past one year records of export and realization of BRC within a week, but no such records have been produced till date and passing of the adjudication order is pending for want of the same. 6. Heard the learned counsel for the petitioner and the learned counsel for the respondents and perused the material documents annexed in the typed set of paper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Customs may require." Section 51:- "Clearance of goods for exportation - where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation." 8. The indepth analysis of the case would reveal that the petitioner is a partnership firm engaged in the business of exporting goods, namely, polyester fabric out of India vide bill Nos. 2306218, 2306219, 2302623 all dated 21.1.2011, which was exported and stopped by the authority as the goods were of inferior quality and the exporter had overvalued the goods with an intention to avail higher incentives and another container No. BSIU9153055, for the last three bills 2401710, 2401712, 2401737 dated 02.02.2011, which were about to be exported and for all the three bills, the petitioner claimed that for the export of 228750.00 yards of polyester fabrics to Afghanistan, declared FOB value of Rs.3,08,81,775.00/- and claiming the benefit of Rs.25,32,305.57 under DEPB scheme and furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority to pass the order in conclusion and decide the matter in accordance with law. 10. The principle of valuation of the goods as contemplated under Section 14 of the Act would make it clear that the value of the imported goods and export goods shall be the transaction value of such goods the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of importation, or as the case may be, for export from India for the delivery at the time and place of exportation, where the buyer and seller of the goods are not related and price is the sole consideration for the sale subject to such other conditions as may be specified in the Rules. However, the ordained principle as envisaged by the Act for the provisional release of goods contemplates that any goods, documents or things seized under Section 110 may pending the order of the adjudicating officer to release to the owner on taking a bond from him in the proper form with such security and conditions as the Commissioner of Customs may require. In the instant case, it is at the stage of adjudication. The petitioner is now adjudicating the matter by giving neces ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
